Soden v. Freightliner Corp.

• Decision Date: 12 September 1983
• Docket Number: No. 82-1178,82-1178
• Citation: 714 F.2d 498
• Parties: 14 Fed. R. Evid. Serv. 306 Mary Ann SODEN, individually and as independent executrix of the estate of Willard C. Soden, deceased, and as next friend of Willard Ray Soden, a minor, and Diana Lee Soden, Plaintiffs-Appellees, v. FREIGHTLINER CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 498

714 F.2d 498

14 Fed. R. Evid. Serv. 306

Mary Ann SODEN, individually and as independent executrix of

the estate of Willard C. Soden, deceased, and as next friend of Willard Ray Soden, a minor, and Diana Lee Soden, Plaintiffs-Appellees, v. FREIGHTLINER CORPORATION, Defendant-Appellant.

No. 82-1178.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1983.

Thomas H. Crofts, Jr. and Ann Livingston, San Antonio, Tex., for defendant-appellant.

Sylvia Demarest, Dallas, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE^*, POLITZ and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The defendant-appellant, Freightliner Corporation, appeals from a judgment on a jury verdict in favor of the plaintiffs-appellees, the Sodens, in this Texas law diversity action based on products liability. The plaintiffs-appellees are the widow and two children of Willard C. Soden, who was killed in a post-collision fuel fire while driving a truck designed and manufactured by Freightliner. The Sodens claimed that the design of the Freightliner fuel system was unreasonably dangerous and was the producing cause of the post-collision fuel fire which killed Willard C. Soden. On appeal, Freightliner argues that the district court committed reversible error with respect to three evidentiary rulings made during the trial, which (1) excluded statistical and opinion evidence offered by its expert, Mr. Hutton, (2) admitted with a limiting instruction evidence of other lawsuits against Freightliner involving accidents allegedly caused by defects in its fuel system, and (3) admitted opinion testimony by Robert Lasere, a lay witness, respecting the dangerousness of the step brackets mounted on the fuel tank of Soden's truck. Finding no reversible error, we affirm the judgment below.

I. CONTEXT FACTS

On April 18, 1978, Willard C. Soden was driving a tractor trailer carrying a load of crude oil. The tractor was designed and manufactured by the defendant-appellant Freightliner. The trailer was made by another manufacturer. Soden's vehicle collided with a Ford Mustang at an intersection and rolled over onto its right side. Soden was not at fault in the accident. He immediately climbed up through the left door onto the outside of his vehicle's cab, but while jumping from it he became engulfed in fire. He died the following day from burns he received in that fire.

The plaintiffs, Soden's widow and minor children, alleged that the defective design of the fuel system in the Freightliner truck was a producing cause of the fire which resulted in Soden's death. The thrust of their argument was that the cylindrical fuel tanks, mounted on the sides of the truck under the cab doors, were improperly protected and subject to breaking up and causing a fire in the event of a collision. In particular, they also argued that the brackets securing the steps to these fuel tanks had pointed ends which, in the event of a rollover, could puncture the fuel tanks. The resulting hole or holes could release diesel fuel near engine components hot enough to ignite the fuel, causing a fire in the engine-cab area. They sought $1,400,000 in compensatory damages and $10,000,000 in exemplary damages allegedly due because of Freightliner's "gross negligence" in failing to correct the design of the fuel system after having notice of its defects.

Freightliner took the position that the fuel tanks were located in the only position feasible for trucks of such design and that the step bracket did not, or could not have, punctured the fuel tank. It contended that the initial source of the fire was the crude oil from the trailer Soden was pulling. It also maintained that it had not been grossly negligent.

The jury held in the appellees' favor and awarded them a total of $885,300 in compensatory damages, but nothing in exemplary damages. Freightliner argues on appeal that the trial judge committed prejudicial error in the three evidentiary rulings discussed below.

II. CLAIMS ON APPEAL

A. EXCLUSION OF FREIGHTLINER'S STATISTICAL AND OPINION EVIDENCE.

Freightliner, on direct examination, tried to elicit from Mr. Hutton, their expert and representative at trial, certain statistics on accidents involving fires in Freightliner trucks to rebut statistics offered by the Sodens on the frequency of fuel system fires in large trucks. These statistics and Hutton's calculations based upon them were also summarized on two charts which Freightliner attempted to introduce into evidence: one chart broke down the number of accidents involving fires into subcategories of (1) electrical system fires, (2) fuel system fires, (3) other classifications of fire, and (4) post-crash fuel system fires; and a second chart depicted Hutton's calculation that post-crash fuel system fires occurred only once every 409,785,800 truck-driving miles. Hutton was presumably prepared also to offer his opinion on the significance of these statistics.

Hutton asserted that the statistics themselves were based on data collected over a three-year period by a sister company, Consolidated Freightways, from its fleet of roughly 2,200 Freightliner trucks and purported to show that only three out of 3,014, or one-tenth of one percent of the accidents which occurred, were accompanied by a post-crash fuel system fire. Hutton's source for this information was Ms. Vorman, the assistant to the director of safety at Consolidated Freightways, who, according to what Vorman told Hutton, had compiled it from 3,000 accident reports made over the three-year period to the Bureau of Motor Carriers Safety on the Bureau's forms. Vorman, who did not testify, provided Hutton this information in a two-page letter (which was shown to the district court but not introduced into evidence) and in a telephone conversation.

Freightliner's counsel attempted to introduce the statistics and the two charts into evidence through Hutton in the course of the following examination:

"Q And have you had occasion to look in to and research the [occurrence] of accidents with these trucks?

"A I have attempted to do that from every available source that you can think of. And for the most part, there is much slack in available data.

"Between moving vans and cars, and it is really hard to say, you know, heavy duty combination vehicles such as the one Mr. Soden was driving, it is hard to find good data on that.

"Q And from the findings that you have made, do you find that the fuel system usually is or is not involved in the various wrecks that these trucks get involved in?

"A I think we have heard or seen all kinds of numbers batted around back and forth here. And the study I have the most confidence in, I have found it is about one-tenth of one percent of the accidents of the Freightliner trucks are apt to result in a post-crash fire that injures the fuel system.

"Q And have you accumulated some statistics on that particular point?

"A Yes, I have.

"Q And has a chart been prepared under your supervision?

"A Yes.

"Q Based on those statistics--" ¹

At this point the Sodens' counsel interposed an objection based on a motion in limine to exclude Freightliner's two charts. ²

The district court, after extensive discussion with counsel and the voir dire of Hutton by both counsel, granted the motion to exclude the evidence. The district court's central concern was that Freightliner had not offered an adequate predicate for the statistics to which Hutton was testifying, which he had summarized on the charts, and on which he was attempting to base an opinion:

"And I am going to grant the plaintiff's motion in limine because it appears to me that there has been a failure to [comply] with a rule as well as an attempt to give a summary of testimony of a witness who has purported to have made the examination.

"But none of the supporting data nor is this examining data witness ... available to the Court. This witness Gene [sic ] Vorman is not available.

"Now, this is without prejudice to the defendant bringing in the witness Gene [sic ] Vorman. And this data and affording plaintiff's counsel an opportunity to review the supporting data and a chance to be heard in the absence of the jury if it is to be requested."

In the discussion that followed, Freightliner's counsel asked the court, "You are excluding the charts? Are you excluding the evidence concerning it?" And the court responded, "I am [excluding the evidence] concerning everything until you come in with a better predicate and then I may after I have heard that, I may give it under a limiting instruction even then." The district court then instructed the jury to disregard the statistical evidence given by Hutton immediately prior to the objection.

The parties dispute whether the district court's ruling excluded Hutton's opinion based upon the statistics, as well as the figures themselves and the charts on which they were depicted. ³ We assume, however, from the court's response to the question by Freightliner's counsel that Hutton's opinion was also held inadmissible to the extent that it was dependent on the statistics. Even so, the district court's exclusion of this evidence was within its discretion. We examine first the excluded opinion testimony.

Rule 703 of the Federal Rules of Evidence states that:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

This Rule broadened considerably the permissible basis for expert opinions, which had been limited at common law to

"(1) information obtained by the expert's personal knowledge; (2) the hypothetical question, which assumes facts reasonably supported by the evidence; and (3) in some...